How to initiate a criminal procedure in Spain
- Public and private crimes
- Criminal complaint
- Who may file a criminal complaint?
- Contents of a criminal complaint
- Criminal report
- Police report
- Individuals obliged to inform the Spanish authorities about the commission of a crime
1. Public and private crimes
To understand how the action against the offender may be prosecuted in Spain, we shall distinguish between public and private crimes.
Public crimes are pursuable by the Spanish authorities. In these cases the individual who was injured as a result of the crime is not a party to the criminal action.
Private crimes (injuries, defamation, sexual offences…) are only pursuable if the aggrieved person claims against it. The individual who was injured as a result of the crime is a party to the criminal action.
In case of private crimes, except in case of rape or kidnapping, along with the written accusation, it is necessary to present a certification before Spanish the judge, justifying that conciliation between claimer and offender has been previously tried.
In some cases, not only the aggrieved party, but private persons are entitled to initiate criminal procedure by informing the police about the offence they had witnessed. There exist two ways of informing the authorities about an offence, filing a complaint (querella) or a report(denuncia).
2. Criminal complaint
2.1. Who may file a criminal complaint?
The aggrieved person may file an accusation (querella) in writing before a judge, stating that a certain person is charged with a designated crime, either a public or a private crime.
By stating the accusation, the complainer initiates a criminal proceeding against the offender in order to investigate whether he or she has committed the crime or not. The complainer shall declare that he or she wish to become the prosecutor party to the criminal proceeding.
Although Spaniards can make this accusation before a Judge, whether they are the aggrieved persons or not, however, foreigners may only claim before a Spanish Judge whenever they had been the victims of a crime in Spain.
The claimer (querellante) may renounce the claim previously stated at any moment, nevertheless he may be required for civil or criminal liability.
The judge will decide whether to start the criminal procedure or not. The Judge decision may be appealed, provided that he had decided not to initiate the criminal proceeding.
2.2. Contents of a criminal complaint
The intervention of a Spanish Lawyer and Attorney at Court is always required to file this accusation.
The complaint shall contain the following details:
- The Judge or court before which it has been filed.
- Details of the claimer: name and surname.
- Details of the offender: name and surname, if these are unknown, a description of the offender shall be provided.
- Description of the offence: a concise statement of the facts; date, place and time when it occurred.
- Description of legal steps, proofs and investigations… to be taken in order to verify that the offence was indeed committed.
- Claimer signature.
Along with the accusation, evidence will be required.
Foreigners shall present a bail to cover the proceeding expenses, unless otherwise stated.
If you have been aggrieved in Spain and are willing to claim before the Spanish courts, it is strongly advisable to seek the assistance of a Spanish Lawyer.
3. Criminal report
Any person, whether offended or not, can file either before a Spanish Judge, Public Prosecutor, or the police, an oral or written statementsetting out the details of an offence.
The crimes noticed may be public or private. Keep in mind that Spanish authorities only investigate and prosecute private crimes when the information (denuncia) is filed by the aggrieved person.
If the offence stated is false, the denouncer will be responsible for civil or criminal liability.
Once you file a report, you shall be provided with a receipt.
What are the differences between the filing of a criminal complaint (querella) and the filing a of a criminal report (denuncia)?
- It is not necessary to give the offender’s description when you file a report.
- Neither Lawyer, nor Attorney at Court intervention is required to file a report.
- Bail is not required.
4. Police report
The police normally report the crime when they are called to the scene of the crime. They also make the initial complaint as result of traffic offences.
5. Individuals obliged to inform the Spanish authorities about the commission of a crime
Individuals who have witnessed the commission of a crime, are obliged to denounce this to the Spanish authorities.
The following persons are not obliged to denounce the offender:
- The spouse of the offender.
- Ascendants or descendants of the offender.
- Lawyers and Attorneys at Court with respect to their customers’ declarations.
- Priests with respect the notices confessed to them.
These are only general guidelines and not definitive statements of the law, all questions about the law’s applications to individual cases shall be directed to a Spanish lawyer.